Richardson, C. J.
delivered the opinion of the court.
The first question to be decided in this case is, whether the office copy of the power of attorney, was, under the circumstances, properly received in evidence ?
We have a statute which provides, “ that when any deed of bargain and sale, mortgage or other conveyance of lands, tenements, or hereditaments shall be made by virtue of any power of attorney, or instrument authorizing any person to execute such deed, or other conveyance, the said power or instrument being recorded in the office where the deed, made by virtue thereof, by law should be recorded, such power having been signed, sealed and acknowledged before a justice of the peace, by the party having lawful right to make the same, a [428]*428copy thereof from the records shali.be read in evidence, when the original cannot be produced, in the same man,ner ag tjie copy of the deed made thereby is admitted in evidence.”
And we are of opinion that this provision in the statute was intended to put powers of attorney, which have been acknowledged and recorded, on the same ground with the deeds which may have been executed under them ; and that in all cases, where an office copy of the deed may be admissible in evidence, an office copy of the power of attorney is admissible. The only question, then, upon this point, in the cause, is, whether an office copy of the deed which was executed under this power could have been used, if the deed had been lost ?
It is believed, that in all cases, where a party claims land under a deed, the constant practice has been to receive as evidence an office copy, when the deed itself is lost. When a party, who is proving a title to real estate, has occasion to use a deed, to which he is not a party, an office copy is received as prima facie evidence without showing the loss of the original ; but when he is a party to the deed, and may be presumed to have it in his possession, he cannot use an office copy until the loss of the original is shown. When, however, the original is shown to be lost, an office copy is in such a case evidence. 1 Starkie’s Ev. 368, note ; 7 Pick. 10, Eaton v. Campbell; 8 ditto, 272, Poignard v. Smith.
But it is said that the power of attorney in this case was not duly acknowledged, a notary public out of the state not having authority to take the acknowledgment of deeds. But we are of opinion that when the legislature gave to notaries public in this state authority to take the acknowledgment of deeds, it placed an acknowledgment before a notary on the same ground as an acknowledgment before a justice of the peace ; and that an acknowledgment before a notary public out of the state, is as valid as an acknowledgment before a justice of the peace out of the state.
[429]*429We are of opinion that the copy was properly received in evidence in this case.
The next question is, whether the direction to the jury, that the demandants, as the legal holders of the note, were entitled to maintain the action in their own names without any other evidence of the assignment, was correct ? This direction was given .on the ground, that, the mortgage being a mere pledge, or security, the interest of the mortgagee is in reality a mere chattel interest, inseparable from the debt it was intended to secure, and passed to the demandants with the debt as an incident. And in order to settle the question, which now presents itself, the nature of the interest, which a mortgage in fee gives to the mortgagee must be attentively examined.
It is settled, that a mortgage in fee passes to the mortgagee, as between him and the mortgagor, all the estate in the land ; and where there is no agreement to the contrary between the mortgagor and the mortgagee, the latter is entitled to enter and hold the land until redeemed, and may maintain trespass or a writ of entry against any person who may disturb his possession, even against the mortgagor himself. 3 Mass. Rep. 138, Newhall v. Wright; 1 N. H. Rep. 169, Brown v. Cram ; 5 ditto, 54, Pettengill v. Evans ; 2 Mason’s Rep. 531, Dexter v. Harris; 9 Mass. Rep. 258, Estabrook v. Moulton; 13 ditto, 515, Green v. Kemp ; 3 East, 449, Thunder v. Belcher.
The law gives to the mortgage these effects to enable the mortgagee to prevent waste, and keep the land from being lessened in value in any way, and also to enable him to receive the rents and profits, to which he is entitled. But notwithstanding the mortgagee, so far as it is necessary to accomplish these purposes, is considered and treated in law as seized in fee and the owner of the land ; yet still his interest is, in other respects, considered in a different point of view- In order to give him the full benefit of the security and appropriate remedies for any violation of his rights, he is treated as the owner [430]*430of the land. But for other purpose.®, the iaw looks beyond the mere forms of the conveyance, to the real nature of his interest, and treats his estate in the laud as a thing widely different from an estate in fee simple.
Thus it is settled that a mortgagee has no interest in the land, which can be taken by the extent of an execution, until the right to redeem is foreclosed. 3 Pick. 484, Eaton v. Whiting; 16 Mass. Rep. 345, Blanchard v. Colburn; 4 Con. Rep. 234, Huntington v. Blanchard; 4 Johns; 41, Jackson v. Willard ; 13 Mass. Rep. 207, Portland, bank v. Hall,
The reason of this is, that the interest of the mortgagee is not in fact real estate, but a personal chattel, a mere security for the debt, an interest in the land inseparable from the debt, an incident to the debt, which cannot be detached from its principal.
Por the same reason, if a mortgagee attempt to convey the land to any person, unless he at the same time transfers the debt, nothing will pass by his deed. 5 Johns. C. R. 570, Aymer v. Bill.
So the widow of a mortgagee in fee, who dies before the right to redeem is foreclosed, is not entitled to dower. Cro. Car. 190, Nash v. Preston; Powell on Mortgages, 733 — 734.
And where a testator, who holds lands in mortgage, by will devises all his real estate, the lands held in mortgage will not pass, although his estate may afterwards, before his death, become absolute by a foreclosure of the right to redeem. It does not pass, because at the time of making the will it was not real estate ; and the estate acquired by the foreclosure will not pass, because it was acquired after the making of the will. Powell on Mortgages, 443 ; 5 Pick. 112, Ballard v. Carter; 3 Vesey, 348, Duke of Leeds v. Munday.
When a mortgagee transfers to another person, the debt which is secured by the mortgage, he ceases to have any control over the mortgage. 8 Pick. 490, Cutler v Haven.
[431]*431When the mortgagee dies, the interest in the land goes, not to the heirs, but. to the executor or administrator. And the executor or administrator may sustain a writ of entry in his own name to recover the land. And a payment to the heirs of the mortgagee will not discharge the mortgage. 16 Mass. Rep. 18, Smith v. Dyer ; 13 ditto, 309, Scott v. McFarland; 11 Johns. 334 ; 2 N. H. Rep. 71,
Free access — add to your briefcase to read the full text and ask questions with AI
Richardson, C. J.
delivered the opinion of the court.
The first question to be decided in this case is, whether the office copy of the power of attorney, was, under the circumstances, properly received in evidence ?
We have a statute which provides, “ that when any deed of bargain and sale, mortgage or other conveyance of lands, tenements, or hereditaments shall be made by virtue of any power of attorney, or instrument authorizing any person to execute such deed, or other conveyance, the said power or instrument being recorded in the office where the deed, made by virtue thereof, by law should be recorded, such power having been signed, sealed and acknowledged before a justice of the peace, by the party having lawful right to make the same, a [428]*428copy thereof from the records shali.be read in evidence, when the original cannot be produced, in the same man,ner ag tjie copy of the deed made thereby is admitted in evidence.”
And we are of opinion that this provision in the statute was intended to put powers of attorney, which have been acknowledged and recorded, on the same ground with the deeds which may have been executed under them ; and that in all cases, where an office copy of the deed may be admissible in evidence, an office copy of the power of attorney is admissible. The only question, then, upon this point, in the cause, is, whether an office copy of the deed which was executed under this power could have been used, if the deed had been lost ?
It is believed, that in all cases, where a party claims land under a deed, the constant practice has been to receive as evidence an office copy, when the deed itself is lost. When a party, who is proving a title to real estate, has occasion to use a deed, to which he is not a party, an office copy is received as prima facie evidence without showing the loss of the original ; but when he is a party to the deed, and may be presumed to have it in his possession, he cannot use an office copy until the loss of the original is shown. When, however, the original is shown to be lost, an office copy is in such a case evidence. 1 Starkie’s Ev. 368, note ; 7 Pick. 10, Eaton v. Campbell; 8 ditto, 272, Poignard v. Smith.
But it is said that the power of attorney in this case was not duly acknowledged, a notary public out of the state not having authority to take the acknowledgment of deeds. But we are of opinion that when the legislature gave to notaries public in this state authority to take the acknowledgment of deeds, it placed an acknowledgment before a notary on the same ground as an acknowledgment before a justice of the peace ; and that an acknowledgment before a notary public out of the state, is as valid as an acknowledgment before a justice of the peace out of the state.
[429]*429We are of opinion that the copy was properly received in evidence in this case.
The next question is, whether the direction to the jury, that the demandants, as the legal holders of the note, were entitled to maintain the action in their own names without any other evidence of the assignment, was correct ? This direction was given .on the ground, that, the mortgage being a mere pledge, or security, the interest of the mortgagee is in reality a mere chattel interest, inseparable from the debt it was intended to secure, and passed to the demandants with the debt as an incident. And in order to settle the question, which now presents itself, the nature of the interest, which a mortgage in fee gives to the mortgagee must be attentively examined.
It is settled, that a mortgage in fee passes to the mortgagee, as between him and the mortgagor, all the estate in the land ; and where there is no agreement to the contrary between the mortgagor and the mortgagee, the latter is entitled to enter and hold the land until redeemed, and may maintain trespass or a writ of entry against any person who may disturb his possession, even against the mortgagor himself. 3 Mass. Rep. 138, Newhall v. Wright; 1 N. H. Rep. 169, Brown v. Cram ; 5 ditto, 54, Pettengill v. Evans ; 2 Mason’s Rep. 531, Dexter v. Harris; 9 Mass. Rep. 258, Estabrook v. Moulton; 13 ditto, 515, Green v. Kemp ; 3 East, 449, Thunder v. Belcher.
The law gives to the mortgage these effects to enable the mortgagee to prevent waste, and keep the land from being lessened in value in any way, and also to enable him to receive the rents and profits, to which he is entitled. But notwithstanding the mortgagee, so far as it is necessary to accomplish these purposes, is considered and treated in law as seized in fee and the owner of the land ; yet still his interest is, in other respects, considered in a different point of view- In order to give him the full benefit of the security and appropriate remedies for any violation of his rights, he is treated as the owner [430]*430of the land. But for other purpose.®, the iaw looks beyond the mere forms of the conveyance, to the real nature of his interest, and treats his estate in the laud as a thing widely different from an estate in fee simple.
Thus it is settled that a mortgagee has no interest in the land, which can be taken by the extent of an execution, until the right to redeem is foreclosed. 3 Pick. 484, Eaton v. Whiting; 16 Mass. Rep. 345, Blanchard v. Colburn; 4 Con. Rep. 234, Huntington v. Blanchard; 4 Johns; 41, Jackson v. Willard ; 13 Mass. Rep. 207, Portland, bank v. Hall,
The reason of this is, that the interest of the mortgagee is not in fact real estate, but a personal chattel, a mere security for the debt, an interest in the land inseparable from the debt, an incident to the debt, which cannot be detached from its principal.
Por the same reason, if a mortgagee attempt to convey the land to any person, unless he at the same time transfers the debt, nothing will pass by his deed. 5 Johns. C. R. 570, Aymer v. Bill.
So the widow of a mortgagee in fee, who dies before the right to redeem is foreclosed, is not entitled to dower. Cro. Car. 190, Nash v. Preston; Powell on Mortgages, 733 — 734.
And where a testator, who holds lands in mortgage, by will devises all his real estate, the lands held in mortgage will not pass, although his estate may afterwards, before his death, become absolute by a foreclosure of the right to redeem. It does not pass, because at the time of making the will it was not real estate ; and the estate acquired by the foreclosure will not pass, because it was acquired after the making of the will. Powell on Mortgages, 443 ; 5 Pick. 112, Ballard v. Carter; 3 Vesey, 348, Duke of Leeds v. Munday.
When a mortgagee transfers to another person, the debt which is secured by the mortgage, he ceases to have any control over the mortgage. 8 Pick. 490, Cutler v Haven.
[431]*431When the mortgagee dies, the interest in the land goes, not to the heirs, but. to the executor or administrator. And the executor or administrator may sustain a writ of entry in his own name to recover the land. And a payment to the heirs of the mortgagee will not discharge the mortgage. 16 Mass. Rep. 18, Smith v. Dyer ; 13 ditto, 309, Scott v. McFarland; 11 Johns. 334 ; 2 N. H. Rep. 71, Bickford v. Daniels.
And when the debt' is paid, or tendered to the mortgagee, whether it be before or after the condition broken, the title of the mortgagee is extinguished, and all the interest in the land revested in the mortgagor by mere operation of law. 1 N. H. Rep. 332, Sweet v. Horn ; 3 Mason, 520, Gray v. Jenks, et a. ; 5 N. H. Rep. 252. Willard v. Haney; 9 Mass. Rep. 101, Porter v. Millet; 1 Cowen, 122, Jackson v. Stackhouse.
It is well settled, that as respects all the world except the mortgagee, the mortgagor is to be considered as the owner of the land. 7 Mass. Rep. 138, Willington v. Gale.
Thus the heir of the mortgagor must bring a suit to redeem. 9 Mass. Rep. 422, Smith v. Manning; 13 ditto, 309, Scott v. McFarland.
The right of the mortgagor is such an interest in the land, that it cannot be passed by parol. 13 Mass. Rep. 311.
It is real estate within the meaning of the statute prescribing the modes in which a settlement may be gained in a town. 2 N. H. Rep. 401, New London v. Sutton.
Where a man mortgages his land in fee, then marries, and before the mortgage is discharged, or the right to redeem foreclosed, dies, his widow is entitled to be endowed of the equity of redemption. 15 Johns. 319, Coles v. Coles; 6 Johns. 290, Hitchcock v. Harrington; 7 John 278, Collins v. Torrey; 6 Pickering, 416, Walker v. Griswold; Stearns on Real Actions, 282; 3 Pick. 475, Gibson v. Crehore; 15 Mass. Rep. 278, Snow v. Stevens; 1 Con[432]*432nect. Rep. 559, Fish v. Fish; 1 Johns. C. R. 45, Tabele v. Tabele ; 5 Johns. C. R. 452, Titus v. Neilson.
The cases which establish this principle, clearly show that the mortgagor is considered as the owner of the land, and as seized of an estate of inheritance, for on no other ground could the widow of a mortgagor in such a a case be entitled to dower.
Thus it seems, that the principles which have been established as to the rights and interests of the mortgagor and the mortgagee, as well in courts of law as in courts of equity, fully confirm what has often been said by judges, that the right of the mortgagee before foreclosure is a mere chattel interest, inseparable from the debt it is intended to secure, and assignable by a mere assignment of the debt without deed or writing. II Johns. 534, Runyan v. Mersereau; Douglas, 610 ; 2 Burrows, 978 ; Roberts on Frauds, 275 ; 2 Gallison, 155 ; 5 Cowen, 202, Jackson v. Blodget; 1 Johns. 580, Green v. Hart.
In general, a mortgage is now viewed in a court of law in the same light as in a court of equity. The debt is the principal thing. The right of the mortgagee in the land is a mere incident inseparable from the debt.
We are aware, that in Massachusetts, the subject is viewed in some respects in a different light, and that it is there held that the interest of a mortgagee cannot be assigned by an assignment of the debt without writing, because the case is within the statute of frauds. 8 Mass. Rep. 559 ; 17 ditto, 418 ; 15 ditto, 233.
But in this state, the right of the mortgagee in the land is extinguished, ipso facto, under our statute by payment, or tender of payment, even after condition broken.
And we are of opinion, that the interest of the mortgagee passes in all cases with the debt, and that it is not within the statute of frauds, because it is a mere incident to the debt, has no value independent of the debt, and cannot be separated from the debt.
[433]*433In this case it is supposed that, it will be conceded on all hands, that the transfer of the note anti the delivery of the mortgage- deed to the demandants gave them an interest in the laud, which a court of law will recognize and protect. In what does that interest differ from the interest of a mortgage in any case ? It gives them a right to enter and hold the land until the debt is paid. And who can set up against them a better title to the land than such a right ?
We are of opinion that the direction to the jury was correct. Judgment on the verdict-